Oklahoma Criminal Defense Blog

When the F.B.I. investigates something, it is with the prospect of presenting their evidence in federal court.  That is likely what the F.B.I. had in mind when a dozen agents showed up in April, 2010, at the Muscogee (Creek) Nation headquarters in Okmulgee, a federal prosecution.  The F.B.I. has for the last year been conducting an undercover investigation of the Muskogee Creek tribe tobacco activities.  F.B.I. investigations are notoriously thorough – and lengthy.

But the Muscogee Creek tribe wasted no time.  The following month, last May, the tribe filed charges in tribal court alleging at least some of the matters the federal authorities would want to prosecute in federal court.   The federal government, via the local United States Attorney in the Eastern District Attorney of Oklahoma, then obtained a preliminary injunction prohibiting the tribal court from proceeding with the prosecutions.  The tribe’s special prosecutor, Rod Wiemer, has appealed the issuance of that injunction to the United States Court of Appeals for the Tenth Circuit, and the tribal prosecutions are on hold until the Appeals Court rules on that.

Muscogee Creek Chief A.D. Ellis says he is the one who got it all started.  He says he has been telling everyone who will listen for the last three years to look into the activities of the tribe’s business arm, the Trade and Commerce Authority.  He claims Dana Johnson, former tribe tax commissioner, left him $3600 in an envelope given her by Randy Benham.  Ellis claims the F.B.I. now has 40 agents working undercover to investigate the tribe’s tobacco dealings.  Of course, the F.B.I. has no comment, referring all inquiries to the U.S. Attorney’s office, which neither confirms nor denies an investigation was in progress.

The tribe has charged three people with bribery (i.e., accepting bribes from tobacco wholesalers):

Dana Johnson, former Muscogee Creek Nation Tax Commissioner, is charged with 4 counts of bribery, to wit: accepting bribes from Randy Benham, former president of Briggs Wholesale Tobacco, and from Marvin Wesley of Seneca-Cayuga Tobacco Company;

Gene Antone Lee, former warehouse manager for the tribe’s Trade and Commerce Authority, is accused of 3 counts of bribery, including one from Benham;

Edward Warrington, also a former warehouse manager for the tribe’s Trade and Commerce Authority, is charged with one count of taking a $7600 bribe from Benham.

The tribe has also charged eleven people with embezzlement from the tribe’s Duck Creek
Community Center in Beggs.  A couple of these, Jeanetta Carr and Cecil Harry, are accused of embezzling over $100,000, and another five of them between $15,000 and $40,000.

The Randy Benham named above pled guilty last November in federal court in Mississippi to defrauding Mississippi, South Carolina, and and United States of $20 million in cigarette taxes and proceeds and money laundering.

The Oklahoma Tax Commission has a lawsuit pending that alleges the Creek Nation maintained a warehouse in Okmulgee to stock contraband cigarettes for distribution.  The Muscogee Creek Nation, 71,000 enrolled citizens strong, has no cigarette compact with the State of Oklahoma for five years.   Chief Ellis says in the past he thought handling Indian-made cigarettes was justified by the tribe’s sovereignty but now believes the tribe should enter into a compact.

Meanwhile, Doug Burnett, speaker of the the National Council of the Muscogee Creek Nation, he was not aware of any investigation by the federal government and the council is not investigating anything because there is no evidence to investigate.  While those statements may be technically correct, would not they cause anyone, criminal defense lawyer or anyone else, to wonder a little about what is going on?